Melvaig Pty Ltd v McMillan-Kay

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Melvaig Pty Ltd v McMillan-Kay [2020] QCAT 21

PARTIES:

MELVAIG PTY LTD

(Applicant)

v

ROBERT MALCOLM McMILLAN-KAY

(Respondent)

APPLICATION NO/S:

NDR152-18

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

22 January 2020

HEARING DATE:

30 July 2019

HEARD AT:

Hervey Bay

DECISION OF:

Member Milburn

ORDERS:

The Application for a Tree Order is dismissed.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where Application for a tree dispute filed – where it is alleged trees have caused serious injury or damage – where Applicant seeks trees on Respondents’ land to be removed – whether root ingress into a sewer line constituted a substantial, ongoing and unreasonable interference – whether tree debris and mould constituted a substantial, ongoing and unreasonable interference

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 41(1), s 42, s 45, 47(1), s 48, s 49, s 52(1), s 61, s 66, s 73(1), s 74, s 75

Fraser Coast Regional Council Local Law Number 3 (Community and Environmental Management) 2011 (Qld) s 14

Thompson v White [2012] QCAT 381

APPEARANCES & REPRESENTATION:
Applicant:	Self-represented by Mr G Schubert (Director)
Respondent:	Self-represented, supported by his wife Mrs Sinclair

REASONS FOR DECISION

Background

1. For many years, Melvaig Pty Ltd (‘the Applicant’) and Mr Robert McMillan-Kay (‘the Respondent’) have owned adjoining properties in a residential area of Maryborough, Queensland. For the Applicant, its property is used as an investment and is comprised of three lettable living spaces within a single dwelling, which are registered with the Fraser Coast Regional Council (‘the Council’) as flats. For the Respondent, his property is a family home, built over 100 years ago.

2. The Respondent’s property contains many trees and vegetation, which the Respondent has carefully manicured in a parklike setting within an urban backyard. The Respondent and his wife enjoy hosting others, primarily family, on the property. For them, the trees on the property provide a good deal of shade and enjoyment.

3. The Applicant’s property also contains an old construction. Over the past ten years, the Applicant has raised concerns with the Respondent about the adverse effect that the trees and vegetation on the Respondent’s property are having on its property. The Applicant has received complaints from its tenants.

The Application

1. In its application (‘the Application’), the Applicant requests the Tribunal to make an order to remove several large trees that are situated upon the Respondent’s property. The Respondent opposes that order, and indeed the making of any order, on the basis that he is a responsible tree-keeper, who has regularly maintained the trees to an acceptable standard. He says that he will continue to do so into the future.[1]

   [1]Tribunal hearing, 30 July 2019.

2. From the Applicant’s perspective, removal of trees on the Respondent’s property would alleviate several concerns, maximise the benefits to it in owning its property, minimise tenant complaints and minimise ongoing maintenance and repair costs.

3. In the Application, the Applicant identified many issues, and provided…